Standing Committee D

[MissAnne Beggin theChair]

Clause16

Deregistrationand exchange:applications

Amendmentproposed [this day]: No. 32, in clause 16, page 8, line 32, leaveout subsection (2).—[PaddyTipping.]

Questionagain proposed, That the amendment bemade.

Anne Begg: I remind the Committee that with this we arediscussing the following amendments: No. 71, in clause 16, page 8, line33, at end insert—
‘(2A) Ifan application for release land of not more than 200 square metres ismade less than 10 years after an application has been granted for therelease of other land within a distance of 50 metres of it, then,regardless of any change of ownership that may have occurred duringthat period, the application must include a proposal under subsection(3).'.
No.33, in clause 16, page 8, line 37, leave out subsection(4).
No. 72, inclause 16, page 8, line 41, after ‘green',insert
‘or already be any otherpublic open space;
(aa) thereplacement land is not less in area and is equally advantageous to thepersons (if any) entitled to rights of common or other rights, and tothepublic;'.
No.70, in clause 16, page 9, line 6, at endinsert—
‘(e) whether thealternative land is no less in area and equally advantageous as thelandtaken'.

David Drew: I shall take up where Ileft off. Having chatted to my hon. Friend the Whip, I shall be evenbriefer than Ithought.
The point ofthe amendments is to sort out the issue of the possible exchange ofland. Amendment No. 71 would ensure that there is no de minimis size ofland resulting in land being nibbled away. It would also impose a timeconstraint restricting the degree to which land can be released insuccessive periods, so that we do not see it gone beforelong.
Amendment No.72 is straightforward. It would make it clear that it is wrong toprovide a piece of so-called open space as an alternative to theconstituted village green or common land. I am sure that that ruse hasbeen played on all hon. Members: someone offers the village what wasalready a piece of open space on the grounds that it is secured forever and a day, when the village is losing a piece of common land thatis just as valuable or even more valuable. I hope that that amendmentis clear.
I particularly want theMinister to respond to amendment No. 70. It would guarantee that avoluntary exchange of common land or a village green would be subjectto the same test as compulsorily purchased land. Section 19(1)(a) ofthe Acquisition of Land Act 1981 requires that land given in exchangemust be no less in area than the other land and must be “equallyadvantageous” to anypersons
“entitled torights of common or other rights, and to thepublic,”
who now have aright to walk on all commons under the Countryside and Rights of WayAct 2000.
Theamendment would ensure that what is received is no worse than what isgiven, provide a clear yardstick for exchanges as well as compulsorypurchase and obtain a subsequent guarantee from the Minister that itwould apply to the de-registration, exchange and registration of landtaking the place of the land being lost. It is very clear, and I knowthat the Minister will be dying to accept theamendments.

Roger Williams: We, too,support the amendments. Village and town greens are precious to thosecommunities able to enjoy them. We know of many towns and villages thatwould like to have a village green for all the benefits that accruefrom them but do not have one. We often see encroachment on thoseprecious areas of land, sometimes in small bites. Theamendments’ strength is that they address that. The loss of avery small piece of a green is an important matter for thecommunity.
The hon.Members who tabled the amendments have made their points, so I will notrepeat them, but it is up to the Minister to respond to the amendmentsas positively as he can. The communities affected by such problemswould hold him in the highest esteem if he let his defences down ashade and let somebody slip the quicker ball through and get aresult.

Jim Knight: I recall that during debates on theNatural Environment and Rural Communities Bill the hon. Gentlemanpromised that I would be held in the highest esteem in respect of somerace between horses, men and all sorts of things—it got himnowhere theneither.
I listenedcarefully to my hon. Friends. I said that I always pay close attentionto my hon. Friend the Member for Sherwood (Paddy Tipping); I try to dothe same for my hon. Friend the Member for Stroud (Mr. Drew) as well,although sometimes he does not make that as easy. My hon. Friends makeimportant points and I support the intentions behind their amendments.
However, I shallresist the amendments. Clause 16 strikes the right balance forflexibility, and I shall take time to persuade my hon. Friends and thehon. Member for Brecon and Radnorshire (Mr. Williams) that we have gotit right. If the proposed release land has an area of more than 200 sqm, replacement land must be offered—no ifs or buts. That isclear. It would apply whenever release land had an area greater than,say, 20 m by 10 m. However, I know that my hon. Friends and the hon.Gentleman are concerned that small areas of land would be eaten away.They want to prevent nibbling, as my hon. Friend the Member for Stroudput it.
Could the status of smaller areas of land be swept away as unimportant? Far from it. Unless the applicant proposes replacement land, there is an absolute duty on the national authority, under subsection (7), to have particular regard to the extent to which the absence of replacement land would be prejudicial to any of the interests in the land. The authority must think about the property rights of the commoners or others, the interestsof the neighbourhood and the public interest in all senses of thephrase, including nature conservation, landscape conservation,protection of public rights of access and protection of archaeological remains or other historic features.
That list is prettyformidable. In the vast majority of cases, when the area of proposedrelease land is less than 200 sq m, replacement land of a comparablesize or quality will need to be provided if the proposal is to beapproved. A case of deregistration without exchange being approvedwould be truly exceptional, but we do not want to rule out thepossibility.
I shallgive an example. Suppose an area of common or green were landlocked byhouses and no land nearby could be used as replacement land. Let ussuppose that there was a proposal to take a very small proportion ofthe land to facilitate, shall we say, disabled access to some adjoiningcommunity facility, and that that proposal was supported overwhelminglyby local people because it really made sense. Although such a casewould be exceptional, we would not want it to be impossible for us toapprove that application because of what was instatute.
What of theother issues raised by the amendments? Should there be a requirement orstatutory expectation that replacement land should be at least as largeas the release land, or equally advantageous to the various users ofit? We do not think so, for the same reason. Of course, it would beexceptional for the replacement land to be smaller, but we do not wantto rule out the possibility altogether. Such a proposal could provide abetter deal for the commoners and the public. Perhaps the release landwould be inaccessible and remote, while the slightly smallerreplacement land was on people’s doorstep, but had not hithertobeen available to them. In such circumstances, we should not be forcedto turn down an application because ofstatutes.
We resistthe “equally advantageous” formulation simply because itcould well be interpreted as meaning that the replacement land had tobe equally advantageous in respect of every one of the interests setout in clause 16(6), which is a much extended list of the issues towhich the national authority must have regard when an exchange isproposed. Currently, the national authority is concerned only withwhether an exchange is fair to the private interests involved;subsection (6) would also include the public interest.
My hon. Friend the Member forStroud mentioned the Acquisition of Land Act 1981. He was right to saythat in the case he mentioned replacement land due to a compulsorypurchase order would have to be equally advantageous to any commoners,other legal right holders and the public. This is the closestcomparable example. However, the deregistration and exchange provisionsin clause 16 involve considering the impact of proposals on a far widerset of interests than even those in that legislation, includingthe
“interests of theneighbourhood...nature conservation...the conservation of thelandscape...the protection of public rights of access...andthe protection of archeological remains and features of historicinterest.”
There is adifference, and there would be a potential legal problem if we were toopen up the possibility that all those interests must be equally servedby the exchange land.

David Drew: I am very pleased that subsection (8) defines thepublic interest. The problem is that we do not define what we mean bythe “interests of the neighbourhood” and how that wouldbe reflected. With the best will in the world, that is where theconflict is most likely to occur. For example, a group of people mightsee the exchange as somewhat less advantageous, but the landowner andperhaps a larger authority, which could have already granted planningpermission, might say, “We think this should take place”.How do we measure those conflicting interests? Perhaps that issueshould be taken on board.

Jim Knight: My hon. Friend raises an interesting point aboutthe definition of the “interests of the neighbourhood”.Clearly, it is up to the registration authority to make decisions on acase-by-case basis as to whether an exchange is reasonable and whetherit balances all those interests up. As things stand, it will have todefine the “interests of the neighbourhood”. I shallreflect on whether we need to flesh that out a little in some form forhim. I hope that on the basis of my explanations, my hon. Friends, andhon. Members, will not press their amendments to aDivision.

Paddy Tipping: I am grateful for theMinister’s kind opening remarks for my hon. Friend the Memberfor Stroud and me. As always, they were followed by a“however”. The “however” that I heard theMinister discuss was that we would be talking about replacement landsave in the most exceptional circumstances. On that basis, and the factthat it is on the record that most of the sites will be replaced in asimilar way, I beg to ask leave to withdraw the amendment.

Amendment, by leave,withdrawn.

Clause 16 ordered to standpart of the Bill.

Clause17

Deregistrationand exchange:orders

Roger Williams: I beg to move amendment No. 97, in clause 17,page 9, line 37, at endinsert—
‘(c) to ensure thatland is contiguous with or accessible to the holder ofrights.'.
Theamendment relates to deregistration and exchange orders, but on aslightly larger scale than the village and town greens items that wediscussed. The provision is more directly aimed at common land thatpeople have rights over and which from time to time will have to besurrendered in the public interest, for example when roads or otherpublic infrastructure are being built.
The Minister might say that theamendment would have been better directed at clause 16(6)(a), whichsays,
“the interests ofpersons having rights in relation to, or occupying, the release land(and in particular persons exercising rights of common overit)”.
We would like theprovision to be more explicit, and to say that exchange land should becontiguous to the land over which the rights are currently exercisedand that it should also be accessible. There are instances where landhas been given up and the land that has been offered in exchange isdistant from the existing commons, and is sometimes even divided fromit by a new fenced road.
The recent example that I havebeen given relates to the dualling of the Heads of the Valleys road,which links the south Wales valleys. It goes across the heads of thevalleys and has been a dangerous road for some time. It has been athree-lane road and has been subject to many accidents. Now, thankgoodness, as a result of the intervention of the Welsh Assembly, it isbecoming a dualled road, but land has been taken up to achieve that.Commoners are not happy that some of the land offered to them has beendistant from where they exercise their rights at the moment; indeed,sometimes it has been on the wrong side of the road, so tospeak.
We would like,in clause 16 or clause 17, a commitment that when that exchange ismade, people with rights on the common can continue to exercise thoserights easily, and do not have to go to exceptional lengths to do so. Ilook to the Minister to give us comfort on that point, because that isa real, practical problem faced regularly bycommoners.

Jim Knight: I think that in my response on the previous clauseI might have given the impression—in fact, explicitlysaid—that the commons registration authority would deal withmatters under clause 16, but it is, of course, the national authoritythat will do so, as is the case for clause17.
I hope that itwill be some reassurance to the hon. Member for Brecon and Radnorshirethat precisely the sort of considerations that he is talking about willbe taken into account by the national authority when determining anapplication for exchange under clause 16. As we saw in discussion onamendments to that clause—the hon. Gentleman mentioned clause16(6)—the national authority must have regard to various factorswhen determining an application. As he says, those factors include theinterests of commoners, so where an exchange relates to common landthat remains in agricultural use, the national authority will look verycarefully at whether the replacement land provides an adequatesubstitute for the commoners.
The hon. Gentleman’spoint about the road is important; it would be absurd if the locationof the replacement land meant shepherding sheep across a busy mainroad, but—I would not want to disappoint my hon. Friend theMember for Sherwood by failing to use a conjunction after being nice tosomeone—we need to retain some flexibility in determiningexchange applications.
For example, a piece ofreplacement land may be highly advantageous to the community as a placefor recreation, or may have the potential for promoting biodiversity,but because the replacement land was some distance from the common, itwould not be accessible to a registered holder of rights who, say,wanted to graziers two geese, even though those rights had not beenexercised since before the war. In those circumstances, it would beplain silly to refuse the application for the sake of those two geese.In short, we resist the amendment, but I offer the hon. Member forBrecon and Radnorshire the assurance that its purpose will be a coreconsideration for the nationalauthority.

Roger Williams: The Minister deals with Government Back Benchersand Liberal Democrat Members even-handedly, in terms of his use of butsand howevers. I listened to what he said, and I am pleased that hisresponse is now on record. Having had the satisfaction of hearing theMinister give that commitment, I beg to ask leave to withdraw theamendment.

Amendment,by leave,withdrawn.

Clause17 ordered to stand part of theBill.

Clause18 ordered to stand part of theBill.

Clause19

Correction

James Paice: I beg tomove amendment No. 64, in clause 19, page 11, line 14, at endinsert—
‘(i) theextent of any land registered as common land as a town or village greensave for the purpose of adding only to the Commons Register land thatimmediately prior to the entry into force of the Commons RegistrationAct 1965 was common land pursuant to a Statute still in force at thedate hereof and provided the said land but for inadvertentnon-compliance with the requirement to register the said land under theCommons Registration Act 1965 has since continued uninterruptedlysubject to the same rights thereover and has remained common land tothis day and has been treated and used assuch;'.

Anne Begg: With this it will be convenient to discuss thefollowing: Amendment No. 35, in clause 19, page 11, line 15, leave outsub-paragraph(2)(b)(i).
AmendmentNo. 48, in clause 19, page 11, line 17, leave out subparagraph(2)(b)(ii).
Governmentamendment No.7.
Amendment No. 49,in clause 19, page 11, line 22, at endinsert—
‘(c) entriesresulting from fraudulent declarations by the owner of the rights atthe time ofregistration.'.

James Paice: I suspect that when the Minister—or, moreparticularly, his officials—saw the amendment, their heartssank, not least because I think thatthey know its provenance.The amendment relatesto a debate that has been going on forsome considerable time between the Minister’s officials and aMr. Pumfrey with regard to Monken Hadley common. Mr. Pumfrey, who isobviously a learned gentleman, has corresponded with us all at greatlength, and he has been challenging officials about the situation. Therefore, I have tabled amendment No. 64, which has been drafted by Mr.Pumfrey. After reading it a few times, one realises that it does meansomething. It is, I am afraid, the language of law as we used tounderstand it, rather than the rather simple language in which I tendto draft my own amendments so that I can understand them.
The principle of the amendmentapplies where there is a piece of common land created by some otherstatute prior to 1965 and someone, in the phrase of the amendment, byinadvertent non-compliance forgot or omitted to register it under theCommons Registration Act 1965. There is a concern that that land wouldbe lost. The amendment would add to the facility for correction inclause 19 the opportunity to correct that sort of situation. I will notdetain the Committee by reading out what the Minister’sofficials have said to Mr. Pumfrey—no doubt the Minister will dothat himself, in so many words, in a few minutes.
There is an important pointhere, and I hope that the Minister will address it. What is the statusof a piece of land that was common by some other statute prior to 1965,but for whatever reason, was not registered? I am sure that allCommittee members would agree that it would be a great pity if thatland were lost as common land. I am looking for some explanation orreassurance from the Minister as to how that land can be kept as commonland if clause 19 is not amended in the way we propose. I look forwardto the Minister’sresponse.
AmendmentsNos. 48 and 49 are far more straightforward and simple because Idrafted them myself, and I am a simple man. They return to the issuethat I raised on Second Reading, and the Minister replied to myconcerns to some degree at that time. I make no apology for returningto these issues because they are very important, and fair play andjustice demand that we should examine them further.
I do not think that there isany real dispute about the fact that after 1965, a large number ofrights were registered that had no true validity in historical terms.They were considerably in excess of rights that people had previouslyexercised under the old levancy and couchancy rules, which weredesigned to relate a person’s common rights to the amount ofstock they could accommodate on their own land during the winterperiod. There were absurd situations where people who could accommodate10 or 20 head of stock during the winter on their own land wereregistering rights for several times that figure during the summer.That aspect is part of the picture.
There are also examples, and Ireferred to one from my constituency—needless to say, my localpress have tried to investigate this, but I have not given them anyfurther knowledge—concerning an allegation that someone hadregistered rights when he had no rights on the common prior to thatdebate at all. They were registered, and there have been no grounds forcorrection. Amendment No. 48 would simply delete from clause 19 thesentence that would prevent a correction being made if it had anyimpact on the right of common.
Amendment No. 49, on which Iam happy to take guidance if the drafting of the precise terminology isincorrect, creates the opportunity in what is intentionally a fairlynarrow situation for correction where entries have been made thatresulted from fraud. The Minister may ask how we could prove fraud and it would be for othersto come forward with the evidence to prove that someone who had claimedthe right had no justification for doing so. By using the word“fraudulent” in the amendment I have tried to narrow downsituations when countless people could say that this or that was notquite right. I understand the Government’s desire not to reopenthe registration issue because it is a can of worms and my right hon.Friend the Member for Penrith and The Border (David Maclean) told usthis morning what his officials said to him when he was the Ministerresponsible for such matters. It is not something to be entered intolightly. Nevertheless, there is a fundamental problem and fair playrequires that it should be addressed. The Government should not simplyshrug their shoulders and pretend that it is too difficult to deal withbecause that would do no one anyjustice.
In his replyto my Second Reading comments the Minister referred to stakeholders andthe National Farmers Union. It is true that the NFU is not in favour ofreopening the register, probably because a number of its members mightbe affected, but it is not true that it would apply to allstakeholders. The Country Land and Business Association, which I quotedearlier, is in favour and said so in its submission to the Committee.It is not a universal view among stakeholders that the matter shouldnot bereopened.
There is acase. I do not have the optimism of the hon. Member for Brecon andRadnorshire that a few charming words will convert the Ministerovernight, but then I am not as gullible as most Liberal Democrats.Nevertheless, I have made the point and I hope that the Ministerunderstands that there are some serious injustices, with ongoingimplications for management. For example, if all but one of the rightsholders of a common accurately registered the rights to which they wereentitled, but one massively over-registered, that could result inover-grazing, which the Bill is, in part, designed to address. If thereis no power to correct that registration, the consequences ofover-grazing and the management decisions that would have to be made,subject to later provisions in the Bill, would affect all rightsholders. They would all suffer because one person massivelyover-registered. That serious injustice should be addressed and that iswhat is behind theamendments.

Paddy Tipping: I want to build on the point that the hon.Gentleman made that the registration process was flawed and that therewas injustice. I have no doubt about that. I would have liked to see abolder approach but clause 19 allows only minor corrections. Largeparcels of land throughout the country should have been registered buthave been left out. That is an injustice initself.
I want todraw the attention of the Minister and his officials—I know thatthey have been to Cumbria frequently to survey the scenethere—to an example that was provided to me by that excellentorganisation, the Friends of the Lake District, which worked extremelyhard in the other place to modify the Bill and has been involved in theissue of commonholders associations and how they are developed. Theydrew my attention to a piece of land at Thirlmere, some of which hasbeen registered as common land. Under the registration process the open fell was registered as common land, butsome of the common land, which was part of the landscape adjacent toit, had been planted and forested, so during the registration processit was not included on the register. There are strong feelings aboutthat. Forested land does not necessarily always remain forested. I ampleased with some of the Forestry Commission’s work to removewoodland and return landscape to its nativehabitat.
As it stands,clause 19(2)(b)(i) does not allow the amount of the land to beincreased at all. I followthe hon. Member for South-EastCambridgeshire(Mr. Paice) on this point. My amendment issimple;it would strike out that possibility and allow theregistration authority to increase the amount of common land. I knowthat this is a radical amendment to clause 19, which just allows forminor correction. Sometimes, amendments are called probing amendments,but I want to use mine as a prodding amendment to remind the Ministerand the people who follow our debate that injustices have been done inthe past and that land that should have been registered—it hadall the attributes for registration—should have beenincluded.
I wouldlike to see a greater proportion of common land and common rightsacross the country. The Bill is currently designed to minimise that.Rather than probe the Minister, I want to prod him and remind him ofthe heritage and tradition in thisrespect.

David Maclean: I support theprinciple of the amendment moved bymy hon. Friend the Memberfor South-East Cambridgeshire. I have not had the privilege of massivecorrespondence from William Pumfrey, MA Cantab., so I do not wish tosupport the exact wording of his amendment. However, I hope that theMinister considers whether on Report we might get an all-partyamendment to clause 19(3). It refers to two reasons why the registermay be corrected when itsays:
“Referencesin this section to a mistakeinclude—
(a) amistaken omission;and
(b) un unclear orambiguousdescription.”
I hopethat the Minister will say that he will add corrections to the 1965Act, because there are a large number of small but important injusticesarising from it. We cannot have the explanation that the 1965 Act wasdefinitive, is set in stone and can never be changedagain.
The Ministerhas the privilege of being on an extraordinary Committee. When I was aHome Office Minister and passed many wonderful bits of legislation, theoldest Act that I ever managed to amend was something relating to the18th century. If colleagues turn to pages 44 and 45 of theBill—sexy schedule 6, which deals with repeals andamendments—they will see at the bottom of page 45 that theMinister is repealing the whole of the Commons Act 1285. I suspect thatthat sets a ministerial precedent in Committee: no one has ever amendedsuch an ancient Act. If the 1285 Act, which was set in concrete or granite for eight centuries, can be repealed bythe Minister, I am sure that a few tweaks to the 1965 Act may beappropriate.
Lookingat the other Acts that are being amended—including the repeal ofsection 21 of the Metropolitan Commons Act 1866 and section 2 of theGifts for Churches Act 1811—I do not think that the Ministercould say, “I’m sorry, we can’t touch the 1965Act. It was the definitive Act, the bible of commonslegislation.” We know that mistakes have been made.
The hon. Member for Sherwoodis right to quote some examples in Cumbria. There are numerous otherexamples. It is not a mega, mega injustice; it is not that all the 1965Act is invalidated, but mistakes were made in all innocence andhonesty. We should have the ability now, after due process, to correctthem, not by arbitrary changing of the register but by going throughthe various processes in the Act and correcting registration mistakesmade in 1965.
I donot believe that the Minister can say that clause 19(3) deals with thatissue. I hope that he will accept an amendment on Report thatspecifically mentions the 1965 Act in much simpler language than in theesteemed William Pumfrey’s amendment, and then we can deal withinjustices done in1965.

Elfyn Llwyd: I agreeentirely with what has just been said. Years ago, I used to practisethe area of law under the 1965 Act, and I came across mistakes time andagain—not of my own doing, I hasten to say. I would often findthat rights had been registered throughout southern Gwynedd by a wellheeled landowner from 100 miles away. To correct those mistakes, thosewho were suffering as a direct result would have to go to the HighCourt. That was the greatest mistake in thatAct.
We have heard inprevious discussions that the 1965 Act was flawed. By and large, it wasnot a bad Act. It was a bit too complicated in parts, but the bigmistake was that it was left to those who were suffering to try tocorrect entries that were patently wrong for whatever reason, whetherby mistake or fraud. They would go to the registration authority, but,ultimately, the answer would be, “Take it to the HighCourt.” Tenant farmers from north Wales could not even considerthat, despite the rights being an integral part of their farmingoperation.
Imentioned in last week’s debate that I hoped that the Bill wouldallow for those corrections to be made without reference to litigation,as has just been suggested by the right hon. Gentleman. I did not get afull response at that stage—nor, to be fair, was I expectingone—but it will be a grave omission in this Bill if we do not atleast open the door to resolving the most blatant of the mistakesand/or wrong registrations of the past. As he said, we are not talkingabout root-and-branch repeal of the 1965 Act, but merely of an avenueto correct what needs to becorrected.
I put thisas strongly as I can. It is clear that these things must be corrected.There are numerous examples in my own vicinity of people who aresuffering as a direct result of wrong registrations and who feel thatthe value of their registration rights has been undermined. Worse stillare those cases that, strictly speaking, involve not an absentee landlord but someone from afarm who might have registered 10 times as much land as he was entitledto, and whose over-grazing is directly causing difficulties in the mostpersonal way to those small tenant farmers who rely on that grazingland in the spring and summer. In terms of the environment, we are allaffected, because even if the tenant farmers send up fewer sheep thanthey should, they find that most of the pasture has been taken over bythe stock of the wrongly registered dominant tenement. Therefore, interms of the environment and justice and to get the Bill right, I urgethe Minister to accept the course that has been suggested to him. Icertainly would join on an all-party basis to correct this omission inthe Bill.
I dare saythat none of us were in Parliament when the 1965 Act was passed. I donot know how the omissions got into that Act, but, here and now, we arecreating law and are capable of correcting the omissions. We should dothat, as we have to consider all eventualities to make good law. I amnot saying for one moment that there will be an awful flood ofcorrections, but there will be several of them. There is the Cumbrianexperience, and I have spoken briefly about north Wales, mid-Wales andother places. Undoubtedly, corrections will have to be made, but theregistration authority will be able to look carefully at each and everyone, and I hope that eventually the situation will be dulycorrected.
Subsection (2)(b)(i) says ineffect that the commons registration authority may not amend itsregister if it will in any way affect
“the extent of any landregistered as common land or as a town or villagegreen”.
By that, I readthat the only way in which an amendment can be made is, again, withreference to the High Court. Again, that is a mistake. If the matter islive and the extent of any land registered as common land or villagegreen is genuinely an issue, we should consider a means of dealing withit, rather than rely on the High Court every time.
As a lawyer, I know thatmaking an application to the High Court does not come cheap. I hopethat I shall not be struck off for saying that but, on a serious point,it is no use saying to people, “You can always take thatavenue.” It is available to only a few. If we are legislatingproperly, we must legislate for everyone and all eventualities. If myreading is correct, must reference be made to the High Court? I thinkthat I am right, but I may be wrong. No doubt, the Minister will put meright if necessary.

Philip Dunne: I support the tenor of theamendments. I have a couple of observations that I do not think otherhon. Members have made. On Second Reading, I referred to the registrarin Shropshire who told me that he thinks there is as much unregisteredas registered common land. The prospect of mistakes remains, and aflexible system that, without the necessity of approaching the HighCourt, allows errors and omissions to be corrected makes eminentsense.
I apologisefor referring to my previous remarks, but the issue was brought home tome by the consequences of the mapping exercise that the Department is undertaking through the Rural Payments Agency. Most farms have been toldthat the maps that they have supplied are incorrect. It is highlylikely that the maps covering common lands will not conform to theDepartment’s expectations, and as a result of more detaileddigitised mapping, a number of errors are likely to arise in existingregistered common land. From a practical perspective, it is importantthat there is an opportunity to make corrections to the registeredcommon land boundaries.
My final point, which is aboutfraudulent rights, also picks up on one of the consequences of thesingle farm payment scheme that we in England are obliged to undertake.Wales is relieved of it. All parties with a claim to a piece of landmust agree about each other’s claims before the Rural PaymentsAgency will sanction payment—when it eventually gets round tomaking payments. As a result of the multiplicity of claims to commonland, if somebody has fraudulently claimed a right or they believe thatthey have a right, they can frustrate payment of claims to those whohave entitlements not only to common land, but to their entire holding.They can potentially frustrate the payment of a large number of singlefarm payments. A flexible system that allows for corrections to bedealt with expeditiously isimportant.

Roger Williams: With due respect to the right hon. Member for Penrith and The Border, the purpose of this Bill, if I understand it correctly, is to repeal the whole of the 1965 Act. It is a question of amending not the Act, but some of the entries in the register, which he addresses. It is correct to do so, because obvious and glaring errors have been entered into the registers. The hon. Member for South-East Cambridgeshire cites an instance of an individual who would have registered grossly more than his rights in relation to a common. However, let me give the example of two contiguous commons that are both in my constituency and in a neighbouring constituency. On one, the commoners got together and decided to register—I think—10 sheep to the acre but, on the adjoining common, the commoners got together and decided to register one sheep to the acre. Not surprisingly, the sheep moved from one common to the other.
I wanted the opportunity to mention a right of common that has not so far been discussed. My French is not good, but my Norman French is even worse, and I am told that the right is known as a right pour cause de vicinage—meaning the right for sheep to stray from one common to another. If there were ever an example of that right, it is the sheep that stray from the great forest of Brecknock to the manor of Mawr Penderyn, where the two registrations that I mentioned took place.
There are such instances, and I am sure that my hon. Friends and I would support any cross-party amendment that could persuade the Minister that obvious registration errors should be dealt with more efficiently and effectively than is allowed for in the Bill. On that basis, we support the amendment and look forward to Report when we can perhaps effect a much more permanent resolution to the problem.

Jim Knight: Before moving to the meat of the debate, I shall speak to Government amendment No. 7 and not dwell unduly on accretion and diluvion. In essence, the amendment enables the registers to be updated to take account of natural variations in the boundaries alongside rivers, lakes, or tidal waters.
On the more substantive issues, amendment No. 64 is the one that has been devised by Mr. Pumfrey. I have some sympathy with the amendment and the individual in that case, and I will genuinely reflect on what has been said. However, for now, I am unable to accept the amendment and I shall endeavour to explain why.
Undoubtedly, some common land and some greens were not registered under the 1965 Act. Often, people did not realise that there was an opportunity—indeed, a requirement—to register, and it was soon too late to do so, because that Act sought to create a definitive register, and its main sanction to compel the registration of commons, including those made by statute as in this case, was that failure to register before the cut-off meant that the land would not be common land. That is how this circumstance came about, and I understand that the amendment would afford a second chance in relation to land that was once undoubtedly common land, because it was so designated in an Act of Parliament. On first glance that seems reasonable, but it poses a difficulty. The 1965 Act provided that unregistered land was deemed not to be common land, and the view of the courts is that the Act trumps any preceding provision in another Act. So land may be designated as common land but, in our view, it is no longer so, and it would be difficult to provide for its registration now, when it is not what it claims to be.
The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) speaks with some authority on such matters, and I need to take his thoughts seriously, because there is an opportunity to look at matters afresh and not necessarily accept history. My understanding, however, is that if owners of such land wish to have it registered under the Bill, they could create a right of common over the land in favour of another person and secure its registration under clause 6. Alternatively they could, as owner, apply for registration of the land as a green under clause 15(7). So there are one or two options to right wrongs, as long as owners wish to do so; all hope is not lost. However, in the case of Monken Hadley common, I gather that the trustees do not believe that their powers are sufficient for that purpose, which gives them a particular problem. I will have to reflect on whether I wish to grasp the elegant solution offered by the right hon. Member for Penrith and The Border. I take great pride in taking this Bill forward, and I suspect that his solution is a little too broad.
I have concerns about amendments Nos. 35, 48 and 49. We accept that there were flaws in the 1965 Act. Land and rights were registered that should not have been, and vice versa.

Roger Williams: It seems to me that the real flaw in the 1965 registrations was that somebody claiming a right could put forward their claim without any evidence, and people who disputed that application had to prove that it was incorrect. That is why these errors have been included; often, people did not want to object to an application for an entry on the register.

Jim Knight: I am sure that that may be the case, but the fundamental question is that while one amendment wants us to include land that was missed out, another wants to exclude land that was put in, and similarly with rights.
The Committee—and ultimately Parliament—has to take a view on whether we want to try to get all the wrongs righted, and open the can of worms that the right hon. Member for Penrith and The Border referred to, or whether we want to move on 40 years after the date. I have concerns about reopening the can of worms relating to what are registered rights and what is registered land. We might reopen all sorts of claims, and all sorts of valuations. We are discussing things that are bought and sold, and the value of those rights and that land would be affected. There would be disputes. I am sure we would create a lot of business for the former colleagues of the hon. Member for Meirionnydd Nant Conwy, but I am unsure whether that is the best motivation for doing this.

Elfyn Llwyd: I am not particularly rising to that bait. Schedule 2 addresses the rectification of mistakes under the 1965 Act. In it, we cater for wasteland of a manor and other land wrongly registered—common land, town land and so forth. We deal with ownership and registration per se, but we do not deal with rectification of rights in respect of grazing and so forth. That is the flaw. The rest of the schedule is good, but we have not dealt with this vacuum.

Jim Knight: I will reflect on the points made in the debate, and, prior to Report, I would very much welcome the thoughts of Members on whether it is possible to frame legislation in a way that sufficiently closely defines it to ensure that we do not open a can of worms—so that we can define clear mistakes without then including a bunch of other mistakes. I do not think that anyone involved in the consultation did not want us just to be able to get on with creating a workable system.

David Maclean: May I press the Minister slightly on that point? It is difficult for us as the Opposition and for minor parties to draft technical amendments. However, if I understand the Minister correctly, he is saying that his officials will work with us on a more narrowly defined range of amendments to the 1965 Act. I accept that sticking into subsection (3) a reference to any mistake in the 1965 Act would be far too wide, but if the Minister is looking at some of the suggested issues on grazing, the hon. Members for Brecon and Radnorshire and for Meirionnydd Nant Conwy have made some points. If officials of all parties would co-operate with us to create a more narrowly defined set of amendments, we might be able to do some business. Is that the assurance that the Minister is giving us?

Jim Knight: I am not making any promises. I am sharing my problem with the Committee. I have some sympathy for Mr. Pumfrey and with some of the points that have been made but, as things stand, I do not see a way forward without opening a can of worms. If hon. Members want to meet me and officials during the next couple of weeks prior to Report to discuss their thoughts on how it might be done, I will be happy to do so. I will also let them know the conclusion of my thinking on the matter before then, so that they will have time to make their own amendments if they choose and if the circumstances require it. I could talk about the amendments at some length, but I think that, on that basis, it is fair to ask the hon. Member for South-East Cambridgeshire whether he is happy to withdraw them.

James Paice: I thank the Minister and hon. Members from all parties who have spoken on the amendments and who are largely in support of their thesis, if not always in support of the precise terminology. I am grateful to the Minister for the generous invitation at the end of his remarks. It is what we have come to expect of him.
I am sure that there must be a way. I feel quite strongly that simply to leave all the errors and not to reopen the issue is wrong. It must be addressed. If it can be done in a relatively narrow way, we all have a responsibility to try to find that way. As I said in my opening remarks, it is in the interests of justice—justice for the common land users of unregistered land and the rights owners who correctly registered their rights and are disadvantaged by those who incorrectly registered them. Justice requires us to exercise as much effort as we can to find a solution.
I am grateful to the Minister for his offer. I look forward to those discussions and assume that his office will be in contact with all of us to arrange them. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 7, in clause 19, page 11, line 19, at end insert—
‘(e) updating any entry in the register relating to land registered as common land or as a town or village green to take account of accretion or diluvion.'—[Jim Knight.]

Clause 19, as amended, ordered to stand part of the Bill.

Clauses 20 to 23 ordered to stand part of the Bill.

Clause 24

Applications etc

Jim Knight: I beg to move amendment No. 8, in clause 24, page 14, line 14, leave out ‘particular' and insert ‘description of'.
Amendment No. 8 relates to the power in clause 24 to make regulations regarding applications under part 1. Subsection (7)(a) will enable regulations to make provision for the appointment of persons from a panel to deal with particular applications. The amendment will ensure that regulations can assign appointed persons to deal with a class of applications rather than individual applications. For example, the Government might wish to provide that all applications under schedule 2 to de-register wrongly registered common land must be referred to a person appointed from the panel. That would ensure that the sort of legally and factually complex issues likely to arise in such cases would be dealt with by a suitably experienced and qualified person.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Roger Williams: I return to the issue that was discussed in great detail in the other place: how the panel might be established under the Bill. Is it a better solution for dealing with applications of the type that we have discussed than having commons commissioners do that or establishing a group of people who I think were termed “inspectors” in the other place?
A point has been put to me by the commons registrations officer in Powys. We have indicated that some mistakes were made in respect of the 1965 Act, but a huge amount of land was registered in Powys—probably 13 per cent. of all the common land in England and Wales. None of the decisions were ever challenged in any way. The hon. Member for Meirionnydd Nant Conwy might say that the reason was the high cost that could have been borne by the person making the challenge. Nevertheless, the decisions were accepted by the people involved. The issue that has been put to me is that we should have some form of tribunal or statutory decision-making process to give people confidence that there is the necessary objectivity and clarity in these contentious issues.
I am told that a tribunals Bill did not complete its passage and did not become legislation. It would have been an appropriate vehicle to set up a proper tribunal for these purposes. The other suggestion made to me was that we could have something along the lines of the existing agricultural tribunals. This might seem a small issue to the Minister, but it is about confidence for those who own commons or who have rights on them, and for the public who seek to enjoy them and to promote nature conservation, archaeology and all the other issues on which we have put so much emphasis today.
I suspect that the Minister will reject what I have said. I can see from the expression on his face that he is conjuring up the words that will let me down gently, but this is a matter of great concern. Although proposals were resisted by the Minister in the other place, the Minister who is present in our Committee has an opportunity to say that there will be a statutory form or a statutory body to deal with this matter, rather than its being dealt with by the seemingly ad hoc type of organisation referred to in the Bill.

Jim Knight: The clause gives the national authority powers to make regulations regarding applications to amend registers of common land, and town or village greens made under part 1. We are discussing subsection (7) in particular. My understanding of what the hon. Gentleman just said is that in essence the question is why we are getting rid of the commons commissioners, who, to some extent, currently have an authority. They have a certain amount of competence, so he wants to know why we want to get rid of them.
The commissioners were established under the 1965 Act to determine disputed initial registrations under that Act. Commissioners had to be lawyers of seven years’ standing. I do not criticise that decision, or lawyers or those individuals for the job they have done. We expect that most applications under part 1 of the Bill will be straightforward and well within the capacity of registration authorities advised by the likes of Mrs. Griffiths. Authorities already deal with all applications for amendment to the registers under the 1965 Act.
Where applications raise particularly difficult matters of law or fact, we have made provision for them to be determined by an independent panel inspector. The amendment that we have just discussed would allow referral to particular individuals. Unlike commissioners, panel inspectors may be qualified because of their knowledge and experience, or technical understanding of agricultural practice, rather than their legal skills. That will add value over what happens at present, when the commissioners are simply there by virtue of their legal background. On that basis, I hope that the Committee will agree to the clause, as amended, standing part of the Bill.

Question put and agreed to.

Clause 24, as amended, ordered to stand part of the Bill.

Clause 25 ordered to stand part of the Bill.

Clause 26

Establishment

James Paice: I beg to move amendment No. 50, in page 15, line 5, leave out ‘association' and insert ‘council'.
It is a challenge to know how to introduce the amendment. I would be quite happy if the Minister said that he would be happy to accept it, and we could move on, because it has huge support, which I will describe. The amendment is logical and sensible and I look forward to listening to any reason that the Minister might have to oppose it. It goes without saying that were it to be approved, there would be a large number of consequential amendments and I hope that we will not waste time arguing about that. We are at the principal point at which the term to be applied to the new statutory bodies needs to be considered.
As the Committee and the Minister are aware—the Minister made the point in his previous comments on Second Reading, in the Committee and outside the House—it is expected that a very large number of voluntary commons associations will remain in existence. Indeed, the Minister said that there will be many occasions on which groups of them will come together to form a statutory body, which is why the next few clauses in the Bill are relatively vague. I entirely agreed with the Minister when he said that he wants to leave it open to see how things work and how groups of organisations and people come together. We will discuss later issues such as the proportion that should belong to commoners. Overall, I support the Minister’s desire for flexibility.
A number of these overarching bodies already exist. We discussed on Second Reading the Dartmoor commoners council, which is laid down in statute—the Minister has tabled an amendment on the matter. There is the Federation of Cumbria Commoners, the Federation of Yorkshire Commoners and Moorland Graziers, the Welsh commoners forum and, I am sure, many, many other groups of individuals who come together within an umbrella organisation. What is common to them is that they bring together voluntary commons associations.
The second part of my case is that there is no doubt that many voluntary commons associations are not convinced that it is in their interests to convert into statutory associations because of the costs and regulation involved in doing so. The Minister will seek to allay that concern, but it is genuine. Thoughts on the issue are being put forward in a joint paper by the NFU and the National Sheep Association, which represent many hundreds of commoners. The Welsh commoners forum is also involved in putting the case.
The associations are very concerned that there considerable added costs will be involved in running a statutory body by comparison with running a voluntary body. The Minister made it clear that he wants to keep voluntary bodies when they wish to remain so. Indeed, it is likely—many may say desirable—that a statutory body would be an umbrella body for a group of much smaller voluntary associations.
That leads me to the issue of the terminology. For the life of me, I cannot see why we need to call the statutory body an association, given that the voluntary body will remain a voluntary association. That can lead only to considerable confusion. As I said, many existing umbrella bodies have chosen other words to describe themselves, such as “council”, “forum”, “federation” and so on.
I am not wedded to the word “council”; if the Minister says that it has too many local government connotations and that we need to think of another term—“commons court”, “federation” or whatever—I shall not mind. My principal point is that to avoid confusion it would be wise for the word “association” not to refer to both a statutory and a voluntary body, because nobody would know the difference.
Somebody trying to deal with their local commons association would not know whether it was statutory or voluntary without some investigation. If the titles were different, that person would know that there was a distinction. I have struggled with this issue and I shall listen to the Minister with interest if he tries to persuade us to leave the Bill as it is. There is, however, an unarguable case for an alternative term. As I said, if the Minister wants to think of a term different from “council”, so be it, but it has to be other than “association”.

David Drew: I am happy to make an offer to the hon. Gentleman; we will agree to “council” if he agrees to our amendments that would promote legitimacy by having people elected to that body rather than things being contrived so that those who form the voluntary associations decide who serves on them. I do not think that that would give such bodies any great legitimacy. The hon. Gentleman may choose to think about that offer before we come to clause 30.
I am intrigued by the notion of a difference between a council and an association. If I read the regulatory impact assessment properly, the Government will set much greater store by how people form themselves into that body, whatever it is to be called, in respect of environmental and social purposes—environmental in the sense that it will be a representative body that applies for environmental grants, or some form of support, and the single farm payment and ascertains when they get paid, and, more particularly, looks at the higher level of environmental support for the area that people are farming.
On the social side, we are looking at some accountability and also some responsibility. Animal welfare, in which I have an interest, is listed as one of the issues. The last time I went out with the Royal Society for the Prevention of Cruelty to Animals we were looking at a beast on Minchinhampton common, which was mentioned on Second Reading. The RSPCA officers made it clear how difficult they had found things because this animal was in some distress, and it needed its hooves cutting back. The officers found it difficult to serve an order because it was not clear whom the animal belonged to; although they had tried to ascertain that, they had not made much progress.
I see this measure as encouraging those who keep animals on the common, who will be part of the representative body, to take some responsibility for the animals if they are grazing on the common. To be honest, I am indifferent to how we would change the term. “Association” means something to me, but I can see the value of calling the body a council if that differentiates it from existing voluntary associations, provided that under clause 30 legitimacy is entailed as part of the Bill.

David Maclean: I support my hon. Friend the Member for South-East Cambridgeshire, who made a valid point. No point of Conservative party philosophy is involved in the amendment; there should be no political divide between us. I knew nothing about this issue until I got a brief from the Federation of Cumbria Commoners. As the hon. Member for Workington (Tony Cunningham), the Whip, will tell the Minister, the Federation of Cumbria Commoners is not a big Conservative landowning interest with an axe to grind, but represents hundreds of small farmers and commoners on the fells in both our constituencies, who are saying that this provision will simply cause confusion. They generally like what the Government are trying to do in the Bill and can understand the concept of a statutory association. They are saying, “We may continue with our voluntary associations, but we might move to statutory ones if there is money in it for us; and the Minister has all the money to go with the powers that we will have”—although that is a different debate.
The Cumbria commoners are saying that there will be total confusion if the associations are called the same thing. Irrespective of the legitimacy of the new council or statutory association, the Cumbria commoners are saying, “We’re small farmers, not lawyers or experts, and when we hear of a commoners association, we assume it is the current thing that we have and understand. If the Government are going to create a new body, please, for goodness’ sake, irrespective of the powers they give it, just call it something different.” The commoners have suggested the word “council”, which is not set in stone—perhaps it could be an authority, or some other words could be used—but they want something different from commoners associations, which is the current model that they all understand, have had for many years and are happy with. The Government are creating something new and they should call the statutory body something different, so that we can tell the dog from the rabbit, as they might say in Cumbria.

Roger Williams: The Liberal Democrats support the setting up of a statutory body to represent the interests on commons. The Minister will know that whereas the voluntary associations have been successful in entering some of the environmental schemes that have been available, there has always been a difficulty, because they have always had to have unanimous support from the commoners. We hope that the statutory solution will ensure that when the majority of commoners wish to abide by a management scheme agreed to achieve environmental objectives, the whole of the common will be able to go in and get the benefit and all the people who contribute to its management get the reward as well.
It was brought to my attention some time ago that a common on Abergwesyn hill that tried to enter an environmentally sensitive area scheme in Wales was confounded because one of its members refused to conform to the management scheme put in place. That is a huge disadvantage and damage to the common, but it also affected those commoners who could have benefited from it.
We support this measure, but we also believe that there is a role for voluntary commons associations, because they do an awful lot of good work in managing the commons, easing out problems arising from time to time in terms of access and nature conservation and in the co-operative gathering and shepherding of sheep that takes place to ensure that, for instance, in terms of scab control, particular commons are cleared at a particular time so that sheep are not left that can continue the cycle of infection.
We also believe that confusion could occur, with the voluntary associations being confused with the statutory bodies. We support the amendment moved by the hon. Member for South-East Cambridgeshire. We are not particular about what the statutory body is called, but if the amendment were accepted it would give a huge amount of clarity to the situation. It would not be cost-effective for some small commons to form a statutory body on their own; they would get together to share costs and administration, so there would be a common in two associations—a voluntary one and a statutory body. The concept of common law, going back to manorial times, is difficult, but the provision would just add a complication to that difficulty. I hope that the Minister, with his graciousness and his understanding of the issues, will accept the amendment.

Elfyn Llwyd: I think that all the points have been made, but I should like to make one brief point. The Farmers Union of Wales and the Wales National Farmers Union are as one on the issue; they believe that there should be a change in nomenclature. When they actually agree, there must be something serious going on. That would be an excellent idea to avoid confusion. To support what other Members have said, whatever the wording, it should differentiate the voluntary bodies from the bodies set up under the Bill. Incidentally, the Farmers Union of Wales and the Wales National Farmers Union also see the need for voluntary bodies that work well to continue. They feel that we should keep the statutory form as simple and as representative as we can—we shall come to that shortly, no doubt—and that things should be done with the minimum cost.

Jim Knight: I am grateful for the amendment. I recognise that the term “commons association” might attract some confusion, firstly because only appointed representatives, many of whom will be elected, will be members of a commons association—the remaining commoners and landowners will simply be participants—and secondly because of the potential for confusion with existing voluntary commoners associations. However, the Bill does not require us to include the words “commons association” in the name of each new statutory body. When making the establishment order, the national authority has to decide on the name of each new statutory body, and under the order it could well call it a commons council.
Having listened, I am willing to consider a minor amendment to clause 26 that would put beyond doubt the fact that the establishment order is not restricted to using the words “commons association” in the name of the new body.

Daniel Rogerson: I am grateful to the Minister for the direction in which he seems to moving. Unfortunately, it would be rather odd for the Bill to refer to “associations” throughout, and then for organisations to have different titles across the country. Bodmin Moor Commoners Association has formed as an interim group, based on the model of the Dartmoor Commoners Council. They are obviously expecting that to be the model for going forward. Does the Minister feel that there might be a little more room for further movement on the issue?

Jim Knight: There may be room. As ever, I am your flexible friend. We may well want to call a new body a commons council. However, if we were to change all the wording in the Bill, that would require a considerable amount of consequential amendment, which might in turn confuse people, but I do not rule that out at this stage; I just offer the option of deciding to be consistent in all the order making, so that the bodies would all be called the same thing. The Committee might want to dwell on what that name should be, because there may be confusion with councils, too. It may be decided in some areas with a parochial church council, a parish council, a district council and a county council that a new council might be one council too far, particularly given how popular councils can be with the public. Some areas may prefer a commons committee or a commons court. I am relaxed about that; there is some merit in keeping the wording in the Bill as it is but simply being consistent in the order making, but I am happy to listen to the will of the Committee on that.

David Maclean: Will the Minister accept that he is probably on the thinnest ice that he has been on all day? That may be reassuring in some ways. Almost every single subsection of clauses 26, 27, 28, 31 and 32 talks about commons associations. If every section and subsection of the Act refers to commons associations, it is no good telling us that at the end of the day they might be called councils, committees, authorities, quangos or courts. They will always be known as associations if the Act refers to them as such.
I welcome the Minister’s assurance that we will look at other matters, but we must do that in the next few days so that we can return to this matter on Report. His other defences and his buts and howevers have been reasonable, but he is being unreasonable about this matter.

Jim Knight: I will take the hon. Gentleman’s words seriously. I am happy to consider the matter, but I am reluctant to accept all the consequential amendments and the confusion that they might create.

Elfyn Llwyd: I reinforce the points made by the right hon. Member for Penrith and The Border. It would be worse still to leave the wording in the Bill and then proceed with orders using another name. That would be confusing in itself, let alone in comparison with a voluntary body. It would be compounded. The point may seem small, but I am sure that the Minister will get round it because he wants the Bill to be a good Bill, as we do.

Jim Knight: I am grateful for those comments. I will go away and reflect on all that has been said and the view of some parties.

David Drew: I am becoming increasingly persuaded that we should call them commons committees because that is exactly what they will be. They will be separate from councils
The key point is that when the Government, presumably with some form of code of practice, go out and encourage voluntary associations to think about becoming statutory bodies and to be available to consider the environmental gains as well as the social gains that they would achieve, we must be clear about what they will be called if and when they become statutory bodies. We need to know that sooner rather than later.

Jim Knight: I will go away with the intention of tabling amendments on Report, probably for the bodies to be referred to as commons committees. However, for the remainder of our debates I think we should continue to refer to them as commons associations; otherwise we shall become confused.

James Paice: Miss Begg, I am beginning to feel even more inferior than usual, because during today’s proceedings the Minister referred to the immense importance that he always attaches to everything that the hon. Member for Meirionnydd Nant Conwy says about such issues and he referred to the power of the argument of my right hon. Friend the Member for Penrith and The Border, but I have so far escaped such blandishments.

Jim Knight: Will the hon. Gentleman give way?

James Paice: I am not sure that this is wise, but of course I will give way.

Jim Knight: I hope that it is taken as read that I fully respect but do not necessarily agree with the hon. Gentleman’s thoughts and comments. As always, they were well thought through and well intentioned.

James Paice: Yes, quite.

Tony Cunningham: The hon. Gentleman should not have given way.

James Paice: No. I think I am grateful to the Minister.
As my right hon. Friend the Member for Penrith and The Border said, I thought that the Minister’s initial response was extremely weak. The clause states clearly: 
“A body corporate established under this section is to be known as a ‘commons association’.”
That could not be clearer or blunter, and to suggest that they should be called something else is stretching the point. Nevertheless, the Minister quickly moved on from that position to a more emollient one, which I welcome. I am sure that the Bill is on a word processor somewhere and I do not believe that the necessary amendments would be difficult to achieve. I would be happy with the word “committee”. My principal concern, as I made absolutely clear, is to avoid confusion and I am unfussed about whether we have a single term or, as the Minister suggested, a range of options. The important point expressed by all Opposition Members is to avoid the confusion of having both statutory and voluntary associations.
In the light of that, I look forward to the Minister’s amendments and promise that I will not chide him for the hundreds that will be necessary on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 ordered to stand part of the Bill.

Clause 27

Procedure for establishment

James Paice: I beg to move amendment No. 61, in clause 27, page 15, line 28, after ‘land', insert
‘(and in particular persons actually exercising rights of common over it)'.

Anne Begg: With this it will be convenient to take amendment No. 100, in clause 27, page 15, line 30, at end add
‘(and in particular persons exercising rights of commonover it).'.

James Paice: This is a short, straightforward amendment. It says that, under the procedure for establishment in clause 27(5), the appropriate national authority for the purposes of the debate—the Minister—must have particular regard to representations from three groups of people. We should make it clear that, under subsection (5)(b), it should not only be those who are entitled to exercise rights of common over such land. We have already heard how many rights are not exercised, but what matters is that the role of those who do exercise the rights over the land rather than those who just own the rights should be particularly important. In other words, if they were to receive an application to establish an association and it transpired that virtually everyone who was pursuing it may hold rights and be entitled to exercise them, but have not done so since the year dot—or, at least since 1965—clearly that application would be considered baseless. The amendment does not require great changes to be made to the Bill, but it is important that we ensure that the voice of the active commoners—those who are exercising their rights, and who obviously have a much greater role in the management of the common, which is what the Bill is about—is strong.

Roger Williams: Our amendment is the same as that tabled by the hon. Gentleman, although it is directed at a different place in the Bill. As he said, it emphasises the difference between active and inactive commoners. Many people with rights do not exercise them and it seems wrong that their views should be of equal weight to those who do exercise their rights. If the management of a common is to be altered as a result of the formation of the statutory body—the association—it is the people who are grazing the common who should enable that change to take place, either by reducing the number of stock on the common or increasing it. Inactive grazers are unlikely to be encouraged to put stock on the common as a result of the formation of a statutory body.

James Paice: To add to that, will the hon. Gentleman not include signing up management agreements with Natural England or the Countryside Council for Wales, or even entering the Government’s higher level conservation stewardship schemes?

Roger Williams: Absolutely. The hon. Gentleman has made a good point. The amendment would be useful because it would assure those commoners who contribute so much to the management of the common that their interests will be at the front of the national authority’s decision-making process. For those reasons, I hope that the Minister considers it appropriate to accept the amendment.

Daniel Rogerson: I support what has already been said. The important principle is that those who exercise their rights are often those who live and work close to the common. There might be many examples of dominant tenements being owned by people who do not occupy the premises and often have little to do with the common concerned. In constituencies such as mine, there are large numbers of second homes; properties lie empty for much of the year. In the past, many of those may have been agricultural holdings. It is particularly unfair that those who choose to take very little active part in the community or the management of the commons should have equal rights to representation or should be given equal standing when it comes to the formation of a commons association, committee, council or whatever it may be.

Elfyn Llwyd: May I urge the Minister to accept the amendment? I respectfully draw his attention to clause 39(1)(a), which is, in effect, a template for the use of the amendment in another context.

Jim Knight: I am just looking at clause 39(1)(a).
We are resisting the amendments for a number of reasons to do with flexibility. It would be difficult to define what constitutes the active use of rights. Should commoners grazing two ewes for one day of each year be considered as exercising their rights, or should it be a greater proportion of rights for a more limited period each year? How long should it be before rights are considered inactive? The commoners may have entered an agri-environment agreement that necessitates rights not being used for a period—does that render them inactive?—or the common may not have restocked after suffering the impact of disease, such as foot-and-mouth. It would also be impossible to determine who falls within the definition of an active commoner, even if one could be determined.
The Bill does not prevent the national authority from according greater weight to the views of what it may define as active commoners, which will be important when there are a large number of clearly inactive commoners, compared with the number of apparently active commoners. However, in reality, on an agriculturally active common, it is likely that most interest, and therefore most representations, would come from those actively exercising their rights.

James Paice: I have listened to the Minister’s argument about how it might be difficult to ascertain who is exercising the rights of common. Following the comment by the hon. Member for Meirionnydd Nant Conwy, will he say how he will do that under clause 39?

Jim Knight: I am sure that I will do so when we get to clause 39. While I think about that, let me just offer one other scenario to hon. Members. On a common where there is no, or very little, agricultural activity, more weight might and should be attached to representations received from persons with nature conservation interests, or with statutory responsibilities for the common. We would not want to prevent such persons from being involved in, or having their voices heard in, the establishment of a commons association.
On that basis, I hope that the hon. Member for South-East Cambridgeshire will seek leave to withdraw his amendment.

James Paice: I am disappointed with the Minister, because I do not think that he has listened to the argument at all. I am not sure whether he is coming to the end of his file tonight.
I made the case as eloquently as I could, and I appreciate that it may have its weaknesses, but the comment from the hon. Member for Meirionnydd Nant Conwy underlined the matter completely. The phraseology is identical. Under clause 39, it is to do with the consent for works:
“the national authority”—
that is, the Minister—
“shall have regard to...the interests of persons having rights in relation to, or occupying, the land (and in particular persons exercising rights of common over it).”
He obviously believes that, in that context, it is possible.

Jim Knight: I am grateful to the hon. Gentleman. Of course, clause 39 differentiates between landowners and commoners, which is a much more straightforward difference than the one between active and non-active commoners.

James Paice: I fail to understand the logic of that intervention, because we are only talking about people having
“the rights of common over it”.
Some of them will be owners, but some will not be. We are talking about
“the interests of persons having rights in relation to, or occupying, the land (and in particular persons exercising rights of common over it).”

Roger Williams: The issue here is that an owner cannot exercise right of common because that involves exercising a right on someone else’s land. The Minister is wrong on this issue because it is bound to revert to a situation of people exercising rights as commoners, not as landowners.

James Paice: I am grateful to the hon. Gentleman; he adds to my argument. The Minister is accepting, under clause 39, that he, as the national authority, will be able to divine which persons exercise the rights of common over the land. However, half of his justification for rejecting the amendment is that he will not be able to do that in relation to whether to set up an association. Frankly, it is a daft position and not one I would have expected the Minister to adopt. I am tempted to suggest that he has not read his notes because he would have seen through the argument if he had read them beforehand. I am far from satisfied with his response and unless he wishes to intervene, I do not feel inclined to withdraw the amendment.

Jim Knight: To help the Committee, I shall undertake to write hon. Members in order to clarify that the main reason why I am resisting the amendment is because we want to retain flexibility. If I have failed to win the argument on flexibility, I apologise to the Committee and the hon. Gentleman, but I shall write to clarify the very similar wording of the two clauses.

James Paice: I am grateful to the Minister for that small concession, but the principle remains. We believe that this is an important point of principle, and a number of outside bodies share our belief.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 8.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Roger Williams: I am disappointed that the Minister could not see his way to accepting the amendment because there are other aspects of the clause that give me cause for concern. Who can initiate a procedure for establishment? There are many thousands of commons throughout England and Wales and all essentially could apply to become the statutory body, the association or whatever we decide to call it in the end.I would think that the people best placed to initiate such a procedure would be the owner of the common, the people who exercise rights, or perhaps even inactive graziers or people involved in the management of nature conservation, access or some other element of the public good.
Organisations or individuals could initiate the procedure for establishment, which would cause a lot of work for a voluntary association, if that were in existence, or the national authority. The Department for Environment, Food and Rural Affairs or even the National Assembly of Wales could be swamped by applications—I will not call them malicious—that were not based on the best interests of the common. It causes me real concern, because if such an application were made and it resulted in a lot of work for individuals who were interested in the common, it might deter them from making genuine applications that could improve it.
People might not consult enough among commoners or voluntary associations to determine the most appropriate application, whether by an individual common or by a number coming together to form a statutory body of sufficient substance to justify the administration and costs. I attempted to table an amendment to that effect, but I could not fit it into the Bill. There is cause for concern, which the Minister could address on Report by coming forward with a limitation on the people who could initiate such a procedure.

Jim Knight: Clause 27 sets out a procedure for establishing a commons association. An association will be brought into existence when the Secretary of State makes an establishment order, and orders will be tailored to the specific circumstances of the common or commons in question. The first step in the establishment process will be at the local level, and it is for local legal interests to decide whether they want to establish a statutory association. We shall not impose an association on a common.
I can reassure the hon. Gentleman that a commons association will not be foisted by interested outsiders upon those involved in managing the common. We realise that a local interest may need some help at the preliminary stage. In recent years, the Rural Development Service has been significantly involved in helping set up voluntary commons associations to assist commoners in their applications for agri-environment funding. As part of Natural England, the service will continue that work. Natural England will play a vital role in helping to facilitate the creation of those local associations where they make good sense, but not to impose them.

Roger Williams: I believe that the Minister is genuine about that. He has before given us the assurance that DEFRA and—I certainly hope—the National Assembly for Wales will not be involved in enforcing the establishment of statutory associations. However, that is not my concern. My concern is that people who are not legally involved with the common might get it into their heads that statutory associations are a good thing and make applications on behalf of commons for which they have little interest.
Nothing in this Bill prevents somebody from initiating a procedure on behalf of a common where the great majority has no interest in forming an association. The time and effort that would have to go into consultation and representation would be entirely wasted, and they would use up a huge amount of energy that could be better expended in another direction.

Jim Knight: Regardless of who makes the application for a commons association, the national authority will still be required to ensure that there is substantial support for it. In assessing the level of support, the national authority will publish the draft establishment order and representations on it, paying particular regard to the views of those with a legal interest in the common, regardless of who applies. Where significant objections are made, there will be scope for the national authority to, in turn, hold a local inquiry. Those safeguards will prevent external interests from overriding the views of those who would be most affected by any new commons association—the people whom the hon. Gentleman seeks to protect.
There are sufficient safeguards in the mechanisms that are being set up for the establishment of a statutory commons association. It is intended to be a bottom-up process. Part 2 will not impose those associations on the key local interests against their will.

Question accordingly agreed to.

Clause 27 ordered to stand part of the Bill.

Sitting suspended for a Division in the House.

On resuming—

Clause 28 ordered to stand part of the Bill.

Clause 29

Constitution

Question proposed, That the clause stand part of the Bill.

Jim Knight: Clause 29 requires the Secretary of State to make regulations prescribing standard terms about the constitution and administration of all commons associations. Regulations made under the clause are subject to the affirmative procedure. The standard constitution will cover matters that are relevant to all associations, such as conduct of members, frequency of meetings, and financial reporting.

Paddy Tipping: Is it prescribed in the standard constitution that sittings of such bodies be in public?

Jim Knight: We would expect that normally the sittings would be but, as with most statutory bodies, there may be circumstances when the associations may want to sit in private.
Each association will also have its own establishment order that will set out its functions. That order can modify the standard constitution when necessary, or can replace standard terms with terms more suited to local circumstances. Some Members may have seen the draft standard constitution and the specimen draft establishment order that we published last autumn, and which were wielded in the Chamber by the hon. Member for Meirionnydd Nant Conwy. They illustrate how the establishment order might integrate with and modify parts of the standard constitution. There is also an example of one possible approach to representation, and a voting mechanism for situations in which there are different interests for a group of commons.

Elfyn Llwyd: Is the Minister prepared to produce copies of the two orders so that the Committee can examine them between now and the conclusion of our deliberations? They came to me surreptitiously, but I lost them, or maybe they were surreptitiously lifted—I am not sure.

Jim Knight: I apologise to the Committee—it would probably have been useful had I anticipated that request and circulated the documents in advance. They are available on the DEFRA website but I shall make sure that members of the Committee have copies. The net effect of the documents would be to reduce the demands and potential costs on those who want to create an association, but to leave them the flexibility that they need.

Roger Williams: I believe that the issues with which we shall deal in this and the following clause will determine whether the statutory associations succeed. If there is any doubt about the support that the Minister has for the Bill, especially from commoners themselves, it arises from these issues, so if he could supply the draft documents that would be good. The hon. Member for Meirionnydd Nant Conwy is a known magician, and the way in which he produced the documents out of a hat on that occasion was extraordinary and well up to his usual standards.
I hope that there will be consultation on the standard constitution before the regulations are made, because people would like to be involved, and consultation would give them confidence that their interests are being looked after. I have no doubt that there will be many amendments to the standard constitution, because the nature of commons is extraordinarily varied. For example, I have only to look to the common of Llangors lake in my constituency, which is entirely composed of water, and over which there are no rights at all, unless one can walk on water. I do not even think that the Countryside and Rights of Way Act 2000 applies to that common, and I assure the Committee that there are no rights of piscary. Yes, there will be amendments to the standard constitution, but that standard constitution will be the basic document, and people must have confidence in it.

Jim Knight: For information, the hon. Gentleman should know that the standard constitution will be subject to affirmative resolution, so it will be scrutinised by both sides.

Roger Williams: That is a great comfort. I am not sure whether many of the commoners whom I represent understand the affirmative resolution procedure, but I am sure that they will be heartened by that comment. The more time that the Minister, DEFRA and the National Assembly for Wales can take on the issue, the better the rewards will be. I assure him that I will be out there encouraging people to take up this opportunity and make the most of it, but we must put the foundation in place to make a success of what should be a good piece of legislation.

Question put and agreed to.

Clause 29 ordered to stand part of the Bill.

Clause 30

Constitution: supplementary

Roger Williams: I beg to move amendment No. 101, in clause 30, page 16, line 27, at end insert—
‘(1A) Such constitution or order under section 26 should ensure that holders of rights on the common have a majority.'.

Anne Begg: With this it will be convenient to discuss the following: Amendment No. 51, in clause 30, page 16, line 29, at end insert—
‘( ) the proportion of members of the association who should be owners of rights.'.
Amendment No. 73, in clause 30, page 16, line 33, at end insert—
‘(e) the holding of meetings in public'.
Amendment No. 37, in clause 30, page 16, line 35, leave out paragraph (3)(a) and insert—
‘(a) the election of at least half the members of the association;
(aa) the local community from which members are to be drawn and the role of representatives of town and parish councils'.
Amendment No. 65, in clause 30, page 16, line 41, at end insert—
‘(h) membership of the association consisting of common rights holders, the owner of the land, tenants and holders of sporting rights.'.
New clause 3—Membership—
‘(1) The membership of a commons association must reflect local interests.
(2) At least half of the members must be elected.
(3) At least half of the members must be resident in the area of the local authority in which the common or town green is situated.'.

Roger Williams: It is a pleasure to speak to amendments Nos. 101 and 73 in this group. Amendment No. 101 is about how the constitution should look. I cannot remember the details of the constitution that the hon. Member for Meirionnydd Nant Conwy produced on Second Reading, but I suspect that it did not include as a majority on the commons association those people who exercise rights on the common. This is a probing amendment.

Elfyn Llwyd: If I can enlighten the hon. Gentleman—I am speaking from memory—I believe that the constitution said that the membership would be between 10 and 12, of which five or six would be commoners and the rest would have other interests. If that will be the number, it will not leave a great deal of room for elected members, for example, and it will not allow for a sufficient majority in favour of the commoners.

Roger Williams: I thank the hon. Gentleman for reminding me how the association would be constituted. Again, those people who actively manage the common should have a majority on the association, and I know that hon. Members will also be considering ways in which people can be elected. For generations, people have contributed to producing commons that are in good heart and under sound management. I hope that the amendment will give confidence to such people so that they can continue that work and so that their vision will drive it forward in the future.
I hope that amendment No. 73 will appeal to the hon. Member for Sherwood, as it would require that meetings of commons associations should be held in public. They might want to transact some business such as financial matters, particularly financial matters involving members of the association, in closed session, but, if the amendment were accepted, the general presumption would be that the meetings would be held in public, which is best practice for public bodies transacting their business.

David Drew: I rise to support amendment No. 73, to which the hon. Gentleman just referred, and amendment No. 37 and new clause 3, which are in my name and the names of my hon. Friends the Members for Sherwood and for Pudsey (Mr. Truswell). We had a debate under the previous clause as to whether meetings of the associations, now to be called committees, should be held in public. I was happy that my hon. Friend the Minister agreed to the draft orders being made available. There must be clarification on which matters would be discussed in public. I accept that the caveats will be finance and, as discussed in the debate in the other place, matters that refer to individuals who may be taking action against another individual. We would not expect such matters to be discussed in public, but I hope that they would be reported on publicly in due course.
Amendment No. 37 and new clause 3 duplicate each other in a sense, although new clause 3 is somewhat longer. It sets out what we have in mind—to give some democratic accountability to the bodies—in two ways. It provides for elections, which we hope would also include election of the commoners themselves, to give them legitimacy. We also wish the bodies to have a local essence, and we feel that that aspect would be best performed by parish or town councils.
The analogy is that where parish and town councils have allotments, they would bring forward representatives of those bodies. We feel that that is a good model, which can be replicated with commons or village greens. Parish and town councils would certainly be responsible for village greens, but it is possible that in terms of commons they do not have a say at present, and we wish to open this up to give local accountability and local legitimacy. One hopes that councils would take a strong interest in the matter. We also hope that local areas would want to take an interest in tying in such a plan with the environmental assistance that the Government make available through changes in the common agricultural policy, and to take some responsibility for it.
Although the amendments are probing amendments, they are useful in that they lay down in terms of statutory instruments how we would want the elections to take place. There are a number of details, but unless such provisions are put in the Bill or at least debated so that we know exactly what the Government have in mind, this ad hoc measure will never be teased out. I hope that the Government will respond. I am sure that my hon. Friends want to talk in more detail about how they think it might work in practice.

James Paice: The amendments, including my amendments Nos. 51 and 65, raise a number of issues. Before I enter into the details, I shall mention that in this clause we are considering almost a contradiction. I can understand how it has arisen. In earlier debates the Minister used the argument for flexibility, which I support in principle, yet here we are with a standard constitution that will be subject to the affirmative resolution process in the House. Obviously, the element of flexibility will therefore be more than a little bit reduced. I am not arguing against a standard constitution, but I think that it seriously diminishes the value of using the flexibility argument against some of the amendments that hon. Members have put forward and that I am about to address.
We are talking about a plethora of different scenarios. Huge commons, and many small commons, each with a voluntary association, will come together under a large umbrella association following the Minister’s early edict. He continually refers to them as associations for the sake of the Bill, but they will operate under a much larger statutory umbrella body. They could include hundreds of rights holders or half a dozen; there could be one relevant local authority or half a dozen. We will inevitably be dealing with a huge variety.
I look forward to seeing the draft constitution when the Minister provides it for us, but it does give rise to a question. This is a general point, to which I hope he will respond. He might leave things open, but does he envisage that the management of the association should be done by some sort of board—I cannot use the word “committee” because of the earlier agreement—a group of officers or something else? I cannot imagine how it could be possible for a body with 10 or 12 members to represent all the interests in some of the larger situations.
Let us consider the area in which the constituency of my right hon. Friend the Member for Penrith and The Border is situated, and the Cumbria commoners. I do not know how many associations there are in that overall council, but I suspect there are several. I would be hard pushed to identify just 10 or 12 individuals to sit on such a body. Therefore, I am unsure that there will not be a need for a larger top body, with some sort of board, management group or something else underneath it. Perhaps the Minister will respond to that particular point. My amendments are aimed at that top body rather than at whatever management board there will be where necessary.
I understand that the Minister wants flexibility, but I have a lot of sympathy with the point raised in amendment No. 101: the majority involved should be owners of rights on the common. I want to refer to clause 31, which we shall come to and which lays down the functions. The functions of an association are quite limited and are generally agricultural. They relate to the management of agricultural activities, vegetation and the rights, which will be largely agricultural although some of them might be piscary.
I am not convinced by the argument of the hon. Member for Stroud about the need for lots of local authorities and such bodies to get involved, because we are talking about a pretty narrow sphere of agricultural functions. That is why it is important that the principal people involved are those who are carrying out such activities on the common: the owners of the rights of common. So, I support amendment No. 101.
My amendment No. 51 is slightly different, and seeks to say that the standard constitution should determine the proportion of the members who should be owners of the rights. I would go along with the majority being in that situation, as the hon. Member for Brecon and Radnorshire suggested. There needs, at least, to be a reference about the proportion of the association who should be owners of rights.
I come on to amendment No. 65, which raises an issue that I raised briefly on Second Reading and which has not yet come up during Committee. On reflection, the amendment is probably directed at slightly the wrong place in the clause, but that is a separate issue and can be addressed at another time. The principal issue is about who should be in the association. This following is not necessarily an exclusive list, but it should be inclusive. Obviously, the commons rights holders should be involved. It is essential that the owner or owners of the land should also be in the association, as should tenants of the land.
I particularly want to refer to the last group in my amendment, which is the holders of sporting rights. I wish to do so because the holders of sporting rights will hold them by virtue of the owner of the land. As I understand the law, they will be leasing the rights not from the commons or the rights holders, other than perhaps in extreme situations, but from the owner of the land. The obvious example would be those commons that are also grouse moors, but many smaller commons will have rough shooting or other conventional forms of shooting sports taking place on them. The shooting rights will be leased from the owner of the land, often for a significant period, possibly 10 years.
I know that the hon. Member for Sherwood takes an interest in such things and that the Minister will know that the value of sporting rights can be influenced over several years of practice in developing the sporting activity, habitat and so on. Therefore, I am concerned that the commons association could take action that was to the serious detriment of the holder of the sporting rights over a period of time. If someone has just signed a 10-year sporting lease when the commons association comes along and makes management decisions according to functions under clause 31, which are extremely deleterious to the sporting capacity of the land, that person would have no comeback. That would be a very serious situation.
I am not suggesting that simply being a member of an association would prevent such situations, but the holders of sporting rights should at least be in the association, which is why I included them in amendment No. 65. I hope that the Minister will understand—picking up the earlier gentle gibe of the hon. Member for Sherwood—that this is not some sort of throwback to antiquated support for landowners, but a recognition that sporting rights are an extremely valuable commodity to the individual and to the local economy of a number of areas. Grouse moors, in particular, add huge sums of money to local communities and the people undertaking rough shoots on more conventional common land will be ordinary working people enjoying a day out with a gun and a dog, perhaps. The important point is that their rights need to be taken into account, if not totally protected, in the setting up and constitution of an association, which is why they are included in amendment No. 65.

Philip Dunne: May I illustrate for the benefit of the Committee some of the problems posed by introducing too much democracy into some of these associations? The example I would like to cite relates to a common in my constituency and the Stiperstones commoners association, which has three holders of grazing rights, one of whom is retired and is not exercising his rights. The common is a substantial one covering an area of 1,000 acres, with only two practising graziers. If the local authorities and the landowner—I support the contention of my hon. Friend the Member for South-East Cambridgeshire that the landowner and the tenant of the land should have rights—were to be included in the commons association and too many other organisations were involved, the graziers, under the proposals in some of the amendments, would be automatically outvoted in associations. That cannot be right.

David Drew: That is the whole point of trying to democratise these bodies: to energise graziers so that they come back to use and advance their rights properly. I accept that there may have to be a balance between the rights of the grazier, the owner and other bodies, but that is exactly the problem with a number of commons associations at the moment. They do not have any life and they are effectively inert.

Philip Dunne: The hon. Gentleman makes the point that I am trying to make. In many cases, graziers are not there to take up the grazing rights. The land does not have the capacity to sustain more livestock. Therefore, it is down to the few people who remain actively involved in it to continue to enter into management agreements to preserve agricultural activity on these commons. If we try to put in place a prescriptive system for the management of the great diversity of common lands, we are in great danger of over-regulating what in many cases requires a very light touch.

Jim Knight: Some interesting points have been made during this debate. Amendment No. 101 would require a standard constitution or an establishment order to ensure that commons rights holders have a majority of votes in the association. Each commons association will be different because of the numbers and characteristics of its commons. It will not always be appropriate for rights holders to be in the majority in an association, especially on a lowland common where common rights are not exercised actively or perhaps even on the common to which the hon. Member for Ludlow referred where there are only two active graziers. However, when an association consists of agriculturally active commons it may be appropriate for active rights holders to have a majority. It is important to retain flexibility so that the association can be tailored to local circumstances.
The hon. Member for South-East Cambridgeshire was not questioning flexibility or a standard constitution, but how the two fitted together. If it would help him, at the end of my comments on the previous clause I said that that will reduce demands and potential costs on those seeking to form associations because they would be able to see a standard constitution agreed by both Houses. However, as for flexibility, we can vary away from that if the national authority chooses to do so to suit local circumstances.

James Paice: I challenge the Minister on that matter. If he is absolutely correct, fine, but am I right that he is suggesting that the Bill is giving the national authority power to permit another constitution that is not in accord with the standard constitution that the House has approved?

Jim Knight: Each association will be set up by order. My understanding is that, when each is set up and properly consulted on through the process of establishment, if there is a variation away from the standard that seems sensible for the local association, that will be possible. If I am wrong, I will advise the hon. Gentleman. However, I am assured that I am not.

James Paice: For the purpose of clarity, is the Minister saying that the order setting up the association will take precedence over the order approving the standard constitution?

Jim Knight: Yes, that is set out under clause 29.

Elfyn Llwyd: Strictly speaking, the order would not then be subject to the affirmative resolution procedure because the order in its final form would be drafted by someone else and not by the House.

Jim Knight: The standard constitution would be subject to the affirmative procedure so that, when those seeking to set up an association from the bottom up are looking at how to start and at what sort of rules would be wanted to govern the work of the association and its procedure, they would see that standard rules have been agreed actively by both Houses through the affirmative procedure. That would be helpful in streamlining and fast tracking the approach while still retaining the flexibility that ultimately we want to be able to offer. As has been said, each common and its situation is different.

Elfyn Llwyd: The Minister has been generous all day in giving way. However, I do not follow his argument. I had a quick look at the standard orders. There is nothing untoward in them. Let us suppose that there is a huge common with lots of sporting and recreational rights, owners, grazing and even fishing rights. To bring in the democratic element and to accommodate all those interests, surely the 10 to 12 would have to be doubled. If the standard constitution that had been passed by order under the affirmative resolution procedure is then effectively doubled in size outside, would that not seem a little strange?

Jim Knight: I do not regard that as strange because the intention of a standard constitution is to minimise the repeated need for parliamentary scrutiny of many standard forms. There is still the ability to vary away from those standard forms, which will be subject to scrutiny once the national authority brings it forward, but each time an association is set up, we do not need to go over and over again those matters that are lifted straight from the standard set of rules that have been agreed under the affirmative procedure. I hope that that explanation is helpful.

James Paice: I apologise to the Minister for intervening again but, as the hon. Member for Meirionnydd Nant Conwy said, he has been generous. I want to be clear about the propriety of such matters. As the Minister said, the standard constitution will be approved by affirmative procedure. As I understand clauses 26 and 27, the order establishing each statutory body will not go through under the affirmative procedure. I am no expert in House procedure, but I find it surprising that a ministerial order can take precedence over the affirmative procedure. Surely, at least the order setting up an association should be subject to the affirmative procedure.

Jim Knight: It would occupy a considerable amount of parliamentary time if every order were subject to the affirmative procedure. Each order setting up an individual association supplements what has been agreed, and by going through that process, we are trying to save time and make things easier for people. The Committee may want to reflect on that. If it has any further questions for me, I shall, as ever, be willing to deal with them.
The hon. Member for South-East Cambridgeshire asked about large associations and whether there will be any form of executive group. Commons associations could be set up over as large, as many or as few commons as the local legal interests support. We should expect many associations to cover more than one common, and in such cases, the number of representatives would be tailored to suit the size and type of commoners. The Dartmoor commoners council has jurisdiction over 30 commons, for example. A large association might include a governing body with smaller committees, but crucially it would still be just one association. There is flexibility in the legislation. I think that I have dealt with amendment No. 101, and I hope that I have given the hon. Gentleman sufficient reason to withdraw it.
My hon. Friend the Member for Stroud moved amendment No. 73. This amendment would add holding meetings in public to the illustrative list. The list refers in subsection (2)(c) to the proceedings of an association. Terms about the proceedings would necessarily include terms about the holding of meetings in public, so the national authority will already have the power to make that sort of provision in an establishment order or in the standard constitution.
As I said in response to my hon. Friend the Member for Sherwood, we envisage that commons association meetings will be held in public. The draft standard constitution that the Committee will see shortly provides that meetings of an association and any committee of an association—or committee of a committee, potentially—will be open to the public. However, that is subject to the proviso that an association’s establishment order can prescribe circumstances in which the public may be excluded.
Amendment No. 37 and new clause 3 look at the representation of local interests on commons associations. Amendment No. 37 would amend the illustrative list of terms that may be contained in the standard constitution or an establishment order. It would replace the reference to membership with a more specific reference that seems intended to require that at least half the members of an association should be elected, that the order should specify the local community from which members are to be drawn, and the role of representatives of town and parish councils. Similarly, new clause 3 would require membership of a commons association to reflect local interest.
The amendment and the new clause would require at least half the members of an association to be elected. Clause 30(3)(a) provides that the standard constitution or an establishment order for an association may include terms relating to the appointment of members, and it clarifies that “appointment” includes appointment by election. That is because if the number of individuals with a particular interest were small—for example, if only one or two landowners were appointing a representative—or if there were no competition for a post, an election could not take place.
The Bill contemplates that members might be appointed through an agreed procedure that does not necessarily involve a vote. I stress that elections will be used when there are sufficient numbers of persons to warrant such a process. Paragraph (a) of amendment No. 37 would prevent the use of the most appropriate method of appointing members to the association, and I hope that it will therefore not be pressed.
New clause 3 would require at least half the membership to be drawn from the local area and would also broaden the representation on commons associations to include parish and town councils. Our objective for commons associations has always been to allow landowners and those with common rights to develop more effective management practices on commons, and associations will therefore be set up to manage rights of common, vegetation and agricultural activities. They are not being established to manage the land for the wider public benefit, or to deal with all the activities that occur on commons, nor will they be given such powers.
Membership of commons associations will therefore normally be limited to those who have a legal interest in the common: namely, commoners, landowners and those holding other rights including sporting rights—we certainly regard sporting rights as being a type of legal interest over commons, and it is right that associations are representative of those who are directly affected by their decisions.

David Drew: What about householders? A number of them are entirely dependent on a common, largely because of the need for access, which is the easement issue on which the Minister became expert through the Natural Environment and Rural Communities Bill. How do they get representation, and when there is a management arrangement, usually through an organisation such as the National Trust, how is that reflected in the way that commons operate? I accept that we are largely talking about agriculture and in my question I am not, but not all commons are principally about agriculture; they have much more importance in providing access to the general public and use for the other things that the Minister has mentioned.

Jim Knight: The short answer is that if householders, or the National Trust, or Natural England or the Countryside Council for Wales have a legal interest, they would have representation. Obviously, associations can co-opt members, and there can be flexibility of set-up so that, if there were a reason to vary membership slightly for reasons on the ground, we might do that. The core thing that the Committee must understand, however, is that those who have a legal interest must have proper representation. There is nothing in the Bill that authorises interference with any easement unless the beneficiary of the easement consents.
Broadening the range of interests represented on an association would also make commoners far less likely to form associations, thus making it more difficult to achieve our objective of effective common land agricultural management. Although we do not wish to impose a requirement for local involvement, the Bill provides sufficient flexibility for other interested persons or bodies, such as parish or town councils, to be involved in the association if there is substantial support for that approach. That may be relevant on a non-agricultural common, where membership may be made up of commoners, the landowner and other interested parties such as the local authority, the wildlife trust and local inhabitants.
The wider public interest, such as public access and nature conservation, will be represented by Natural England’s oversight of common land, and in Wales by the Countryside Council for Wales. As was discussed on Second Reading, Natural England would not necessarily be a member of the association unless it had a legal interest in the land or was co-opted by the members.
We shall establish a national stakeholder group to advise on implementation of the Bill, which will provide an opportunity for involvement of wider interests.

David Drew: What happens if there is a dispute about the way in which the association is set up or runs? Is that where Natural England could be lobbied or could arbitrate? A dispute between agricultural and public use is quite possible; that is why some of us were keen to have some local representation, in terms of ensuring legitimacy, for those people who clearly have a vested interest in making sure that those commons exist in future.

Jim Knight: Obviously, we hope that, in establishing the association, we will manage to get the balance right, in terms of representation and accountability through election and so on. However, if that fails and there is a dispute, the national authority has the power to arbitrate. Under a later clause, associations can be wound up by the national authority following consultation. That ultimately is the sanction. Certainly, we would hope that Natural England would report to the national authority if it thought that there was a problem with the association not fulfilling its functions properly. I hope that that satisfies my hon. Friend.
On amendment No. 65, we certainly expect that the majority of associations will be made up of common rights holders, landowners, tenants and those with sporting rights. Those people are likely to be the majority of members on an agriculturally active common and, in making the establishment order, the national authority will have particular regard to their views, but we do not want to limit an association to that because of the situation on non-agricultural commons. As my hon. Friend the Minister for Climate Change and the Environment said on Second Reading, the Dartmoor commoners council has a veterinary officer, for example, who advises on animal welfare.
Finally, turning to amendment No. 51, which would enable the standard constitution or an establishment order to specify the proportion of members of an association who must own rights over that common, we have avoided specific requirements about membership in the primary legislation in order to allow local interests to have a larger say at the establishment order stage about how different interests in a common should be represented. It is such flexibility that we are concerned with. I hope that the hon. Member for Brecon and Radnorshire accepts that and will withdraw his amendment.

Roger Williams: On a point of order, Miss Begg. I wonder whether you could say whether there will be a stand part debate on this clause.

Anne Begg: It is very much up to the Committee to decide whether to continue debate. There has been a long debate on these amendments.

Roger Williams: Thank you, Miss Begg. I am sure that a number of us will take great comfort from the fact that the Minister put on record that, in setting up the statutory bodies to represent commons, the people with a legal right in respect of the commons should have their rightful place on those bodies. We can take some comfort from that. He suggested the people whom he had in mind—those who exercise rights, the landowner, and sporting tenants. That is of great comfort to us and to people who use commons.
How the bodies are to be made up is important, because they will have considerable powers; they will be entirely different from the voluntary associations that will need the agreement of all commoners before they can enter into agreements on environmental schemes. Clause 33, which we will debate shortly, says:
“A commons association does not need the consent of a person who has a right of common over the land for which it is established in order to do anything on the land”.
It adds:
“A commons association does not need the consent of any other person with an interest in the land for which it is established in order to do anything on the land where what is proposed to be done could be done without that person’s consent by any person who has a right of common over the land.”
So those bodies really will have a new power that has not been exercised by voluntary associations in any way. That is why we are concerned that people who manage and use commons should have confidence in the associations that are to be set up, and why we have taken some time to debate the amendments. Certainly, the Minister’s statement on the matter is important, and we shall reflect on it, although we might return to the issue on Report. In light of his comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Roger Williams: The way in which the members are appointed is important. The hon. Member for Stroud has suggested that there should be a democratic process, but other hon. Members have indicated that that might not always be the best way forward. I should have thought that commoners would want some democratic process for electing the people who would represent them on the statutory bodies, given that they will commit them to schemes and practices over which they will not have a direct influence.
On Second Reading, I indicated that there was a huge difference between the involvement of active and inactive commoners and whether a dominant tenement is in the ownership of a sole trader or a partnership—for example, whether one person may own six or seven dominant tenements around a common and whether he or she should have greater rights than a person owning one dominant tenement. Should there be some reflection of the fact that one person may have rights to graze 100 sheep and another has the right to graze 1,000? Should the many different commitments to the management of the common be reflected in a different election system?
The clause says that, by regulation, the national authority can indicate what sort of election process could be used to appoint members. Will the Minister say whether he has had any thoughts on that?

Helen Goodman: The hon. Gentleman’s question raises another, which I hope that the Minister will be able to answer, about the system for the landowner to secure representation on the group. I envisage a situation in my constituency, which has a large number of large commons, but only two significant landowners that will, in effect, be guaranteed places in all the associations. I cannot understand how a system of election would fit in with that, or whether different systems of appointment are desirable. I should like the Minister to clarify how that will pan out.

Roger Williams: The hon. Lady raises an interesting question. There are commons in my constituency with more than one landowner.
Although we are pleased that the Minister has spoken about the importance of people’s legal rights, it is important, if associations are to enter into environmental agreements, that they have the support of organisations, such as the Royal Society for the Protection of Birds and, perhaps, the wildlife trusts and others. I am not sure how an election would work in such cases. Perhaps he will share any ideas that he has on this tricky and rather thorny problem.

Elfyn Llwyd: Perhaps I could return briefly to an area of confusion, and I am obliged to the National Farmers Union for drawing attention to it. The NFU refers to the clause, in respect of which we are talking about board, council, or executive members. Surely, everybody who exercises rights of common on the common will be members, as such, of the association. [Interruption.] Is that not right?

Anne Begg: Order. That was not an intervention; I was taking it as a speech.

Elfyn Llwyd: I was developing the theme. Surely, if the Minister wishes to intervene, it would be fair for everyone.

Jim Knight: I was trying to intervene to be helpful, but I have forgotten what I was going to say.
The members of the association would be the representatives and members of the committee. They would be there by virtue of their representation of the various legal interests. In some cases, there might not be enough people for an election; when there are, there will be an election.

Elfyn Llwyd: I am grateful for that.

Jim Knight: I may have answered most of the questions in my intervention. The establishment order will determine voting mechanisms for electing members of the association. In some cases, weighted voting might be appropriate. We cannot give one method that would work for all commons—as we have discussed, they are so varied and there are very different balances between landowners, commoners and so on.
We need to retain flexibility and to ensure that how the associations are formed and properly consulted on is appropriate to each case. It may well be that in the constituency of my hon. Friend the Member for Bishop Auckland (Helen Goodman) one or two landowners would be representative because of their legal interests in a number of associations, if one big one had not been formed. However, unlike at present, such landowners would no longer have the veto over what went on, because the associations would make the decisions.

Question put and agreed to.

Clause 30 ordered to stand part of the Bill.

Clause 31

Functions

David Maclean: I beg to move amendment No. 93, in clause 31, page 17, line 43, at end insert—
‘(5A) Where a commons association is established for an area of land that consists of more than one common, it may exercise the functions conferred on it under subsection (1) separately for each common or group of commons.'.
Part 2 of the Bill deals with statutory commons committees and the functions related to the management of agricultural activities, vegetation and the exercise of rights of common. Currently, to a greater or lesser extent, those functions are carried out by the voluntary commoners associations. The Federation of Cumbria Commoners is excited about part 2. It tells me that if its potential is to be properly realised, the voluntary associations will have to be convinced that it is worth the candle to change to statutory committee status.
At the moment, the additional cost and responsibilities and increased burdens may outweigh the advantages of going down the statutory route, unless there is some Government pump-priming. If there had been a stand part debate on part 2, I would have made a speech on the missing funding elements. However, there is no legitimate scope for me to do so and be in order.
The most appropriate size for a typical upland statutory commons committee is uncertain, although the larger the grouping of commons covered, the greater the potential for cost-efficient administrative structures. At the same time, the very individual and peculiar nature of some of the commons, both in respect of their historical development and their modern-day management needs, demands very localised and sometimes individual decision making at individual commons level.
The amendment seeks to ensure that when a statutory commons committee is in the form of an umbrella organisation that looks after two, three or half a dozen commons, because that is seen as the most appropriate and cost-efficient way forward, rules that relate to specific individual commons within that umbrella may be created, and there may be different rules for different commons.
To give a simple example, Caldbeck and Allendale commons in my constituency and that of the hon. Member for Workington might decide to set up a statutory umbrella organisation to share the costs of administrating the statutory functions. However, they might wish for there to be totally different management rules for Caldbeck common on the one hand, and Allendale common on the other. The amendment seeks to make it clear that a statutory commons committee could exercise different functions for all the individual commons within its umbrella.

Daniel Rogerson: Our sitting has been long and I shall attempt to be brief.
I rise to support the thinking behind the amendment. The example of Bodmin moor has been raised before and I raise it again. It covers a large area of my constituency and of the neighbouring constituency of South-East Cornwall. It is not a common, but a patchwork of many rural communities. Around 17 parishes would be affected so a large number of people would want to be involved. The more flexibility there is for voluntary associations to act within a statutory association or in concert with a statutory association, the more effectively the Bill will function.
I shall be interested to hear what the Minister has to say about provision for small areas of common land that may be near a major area of common landwhere commoners and landowners want to form an association and whether a nearby area might be able to have some form of relationship with the larger statutory association to gain access to some of the provisions in the Bill.

Jim Knight: I am grateful for the amendment and to be able to respond to the concerns of the Cumbria commoners and perhaps some of the Cornish commoners.
The amendment is unnecessary, but that is good news because part 2 is already sufficiently flexible to enable a commons association to do what hon. Members are asking for. It can respond to the different conditions found on each common that it manages. For example, its functions relating to the management of agricultural activities do not have to be exercised in exactly the same way in relation to each common. That will depend on the needs of each individual common. The national authority could, in the establishment order, confer different functions in respect of different commons within the same association, but we would probably prefer to give commons associations wider functions and allow the association itself to pick and choose those most suited to it at any one time.
As commons associations are empowered to do anything that will assist them in carrying out their functions, they could, for example, vary the livestock management regimes for each common or make different rules for different commons to respond to local conditions. They could also set up different voting regimes for different commons within the association to avoid the need for everyone having to vote on issues unrelated to their specific common.
In response to the last question asked by the hon. Member for North Cornwall (Mr. Rogerson), I suspect that if there was worry about a small common being subsumed by a larger one in an association, different rules would be set up for their management.

Daniel Rogerson: The question also related to areas such as Bodmin moor, which has clearly defined boundaries with areas of common land nearby but not actually in the area. Would they be able to have some form of relationship?

Jim Knight: I am sure that they could have a relationship because the associations will have wide and flexible powers to do anything that will assist them in carrying out their functions. I hope that that will be sufficient for the hon. Gentleman, and that the right hon. Member for Penrith and The Border will withdraw the amendment.

David Maclean: In view of the Minister’s assurances that the various sections of part 2 of the Bill will allow to happen what I want to happen, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 ordered to stand part of the Bill.
Further consideration adjourned.—[Tony Cunningham.]

Adjourned accordingly at four minutes past Seven o’clock until Thursday 27 April at Nine o’clock.